Posts Tagged ‘iiNet’

The Communications Alliance has published a draft Code for a copyright notice scheme in Australia.

The draft Code will apply to residential, fixed line accounts only. It appears to be intended to apply to all ISPs of (an as yet to be determined) minimum size. The scheme does not involve ISPs terminating, suspending or throttling accounts, but leads up to the rights holders potentially making applications for preliminary discovery to identify egregious account holders. Participation in the scheme, however, does not preclude a rights holder from taking infringement proceedings at any stage.

The draft Code envisages 3 stages of notice:

an Education Notice;

a Warning Notice; and

a Final Notice.

A rights holder who alleges an infringement would send a notice in the agreed form to the relevant ISP which would then issue a notice at the appropriate level to the account holder. The ISP must not at any stage disclose any personal information “including the identity or any contact details of an Account Holder at any stage of the copyright notice scheme, unless there is a court order or written permission from the Account Holder”.

Each type of notice will include, amongst other things, details about the alleged infringement and information where legitimate content can be obtained.

A Final Notice would be issued only within the 12 months from issue of the most recent Education Notice. If more than 12 months has passed, the process resets to the Education Notice.

If a Final Notice is sent, it will include a warning that the Account Holder may be subject to court proceedings including an application for preliminary discovery. An Account Holder who receives a Final Notice may challenge it before an Adjudication Panel on payment of a $25 fee. Until the challenge is resolved, the Account Holder must not be included in “the Final Notice List”. The costs of the Adjudication Panel are otherwise to be borne by the rights holders.

Rights holders can seek access to each ISP’s Final Notice List – which must be provided in a way that does not include any personal identification material and, having received it, the rights holder may apply to “a federal court or tribunal” for preliminary discovery and the ISP must abide by the outcome.

It is envisaged that the Code will operate for 18 months and then be subject to an evaluation.

The implementation of the scheme will be overseen by a Copyright Information Panel, consisting of representatives of the ISPs, rights holders and “the Consumer Organisation”. The Copyright Information Panel will also be responsible for appointing the Adjudication Panel.

In addition to the size of ISPs who must participate, the press release notes that the parties are still to agree on the funding arrangements – i.e., who will bear the costs of the notices and administration – and how many notices an ISP may have to handle in any given month.

The publication of the draft reflects the ultimatum from the Attorney-General back in December.

The draft is now open for public comment until 23 March 2015. The intention is that, once finalised, the draft will be submitted to the Australian Communications and Media Authority for registration as an Industry Code under s 112 of the Telecommunications Act 1997.

First step: they have written to “industry leaders” and told them to come up with an agreed industry code for a “graduated response” regime[1] to be registered with the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997;

Second step: if the “industry leaders” cannot come up with an agreement within 120 days[2]:

the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.

Third step: the Government will also amend the Copyright Act to enable rights holders to get injunctions ordering ISPs to block access to websites outside Australia that provide access to infringing content.

Well, at least, Option 1 in the Issues Paper seems to have died a deserved death.[3] The media release does not mention, however, whether or not the Government will extend the “safe harbour” provisions to “service providers” and not just “carriage service providers”.

The letter the Government sent to “industry leaders” did provide some general direction about the contents of the anticipated industry code:

that ISPs take reasonable steps (including the development of an education and warning notice scheme) to deter online copyright infringement on their network, when they are made aware of infringing subscribers, in a manner that is proportionate to the infringement

informing consumers of the implications of copyright infringement and legitimate alternatives that provide affordable and timely content

providing appropriate safeguards for consumers

fairly apportioning costs as between ISPs and rights holders

ensuring smaller ISPs are not unfairly or disproportionately affected, and

include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices

and included the exhortation:

Any code must be sustainable and technology neutral. It should be educative and attempt to address the reasons that people are accessing unauthorised content. Consumer interests must be given genuine consideration in your negotiations.

The media release also includes a warning, of sorts, to the right holders:

The issue of affordability and accessibility of legitimate content is a key factor in reducing online copyright infringement. The Government welcomes recent action by content owners and expects industry to continue to respond to this demand from consumers in the digital market.

It will be interesting to see if the “industry leaders” can come up with an agreed code, given they have failed to reach agreement for over a decade now. Even if the Government is forced to impose a code, it may also be interesting see which ISPs join in the scheme. If there is an industry code and significant ISPs join in, would that be a basis for reconsidering the High Court’s ruling of non-authorisation in the iiNet case which was predicated, at least in part, on the ability of subscribers to jump ship from iiNet to another ISP if sanctions were imposed.

That is a system whereby subscribers get some number of notices that their account is (allegedly) being used to infringe copyright and warning them to stop or …. All the media release says at this stage: ?

The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content.

According to the letter the Government sent to “industry leaders”, the industry code must be agreed by 8 April 2015. (Update: you can now read the letter via this link (scroll down).At the moment, I don’t seem to be able to find a copy of the letter, which was attached to the media release, online.) ?

The media release says that the effectiveness of these measures will be reviewed in 18 months as in “a world of rapid changes in technology and human behaviour, there is no single measure that can eliminate online copyright infringement.”. ?

I should note for the record, that the Government did officially release its Online Copyright Infringement discussion paper (pdf) on 30 July 2014.

Responses are required by 1 September 2014.

There are 3 main proposals:

extend the definition of ‘authorisation’ by amending ss 36(1A) and 101(1A)

introduce power for rights owners to obtain orders against ISPs to block access to infringing websites (like s 97A in the UK)

give some real scope to the “safe harbours” by extending their availability from “carriage service providers” to “service providers”.

The discussion paper does say in relation to ‘extended authorisation':

The Copyright Act would be amended to clarify the application of authorisation liability under sections 36 and 101 to ISPs.

It’s not clear how this will be done. While the discussion paper does specifically identify amendments to ss 36(1A) and 101(1A), the proposed changes apply generally to everyone and not specifically to ISPs. It is also not immediately clear how the proposed changes in fact cause ISPs to become liable for authorisation.

It does seem to be a policy still in development.

The Minister for Communications linked the reforms to some positive action about the very high prices Australians are charged for online access to copyright materials such as recorded music, movies, software etc. compared to the prices charged overseas. [1]

A transcript of my talk to the Copyright Society on the House of Rep’s committee report “At What Cost: The IT Pricing Inquiry and Copyright” can be found in Vol 31(2) Copyright Reporter 1 (attributed to Nick Smith). ?

I remain to be persuaded that [adopting ‘fair use’] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.

and

First, when this process is finished, and it will be a through and exhaustive exercise in law reform, the Copyright Act, will be shorter, simpler and easier to use and understand.

Secondly, the Act will be technology neutral – no more amusing references to videotapes as we find in current section 110AA.

Thirdly, we will pay careful regard to the broader international legal and economic context ….

In carrying out this work:

The challenge for us today is how to balance the benefits for creators against a range of other public interests including the interests of users, educators and other important public goods.

….

Nonetheless, the fundamental purpose of copyright remains unchanged – to ensure that those who take on the risks of creation are appropriately rewarded for their abilities and efforts.

On the subject of online piracy:

the High Court’s decision of 2012 in the iiNet casechanged the position. The Government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.

Options the Attorney identified for fixing this include ‘graduated response’, third party injunctions against ISPs or maybe just facilitating self-regulation.

One point of interest: Habitare commissioned Tamawood to develop plans for 2 new houses for it. These plans were submitted to the Brisbane City Council to obtain development approvals. The relationship with Tamawood broke down, however, and Habitare continued to use the plans. Collier J found that the “usual” (i.e. Beck v Montana)[2] implied licence did not apply here. It did not apply because Tamawood did not get paid the “usual” fee for doing the job: rather, it agreed to prepare the drawings at no cost on the basis that it would build the houses once development approval had been obtained. Once the deal fell through and Habitare decided not to proceed with Tamawood as the builder, therefore, its rights to use the plans terminated.

Continuing with the licensing theme, Mondo (which Habitare eventually used to design the houses in dispute) did infringe copyright by creating the infringing plans Duplex 1 and Duplex B plans. It did not infringe Tamawood’s copyright, however, when it downloaded the Torrington plans from Tamawood’s website. Tamawood made the plans available on its website for the whole world to see and download so Collier J considered Mondo’s purpose in using the downloaded plans to design competing houses was not relevant.[3]

(Mondo did succeed in its cross-claim against Habitare and 2 of its principals for misleading or deceptive conduct: they told Mondo that the copyright issues with Tamawood had been sorted out or resolved.)

A second point of interest is that the builder of Habitare’s infringing houses, Bloomer Constructions, successfully made out the “innocent infringer” defence provided by s 115(3). Cases where this defence has been relied on successfully are as rare as the proverbial hen’s teeth. It seems to have been because the builder became involved very late in the day: it had no knowledge of Tamawood’s involvement in the earlier stages and the plans it was provided with had Mondo’s name or title block.

Finally, a curiosity: the reasoning on authorisation liability manages not to refer to Roadshow v iiNet at all, but refers extensively to University of NSW v Moorhouse. In the event, Habitare apparently conceded it would be liable for authorising the infringements of the others. Two of its principal officers, Mr Peter O’Mara and a David Johnson, managed to escape liability, however. While they were heavily involved in the business, their involvement was mainly on the finance side rather than sales and marketing. Collier J seems to have found that, within Habitare, responsibility for the conduct that infringed had devolved on to 2 other officers, Shane O’Mara – Peter O’Mara’s son – and a Mr Speer. Her Honour also considered that, by engaging Mondo as architects, Peter O’Mara and Johnson took “reasonable steps to prevent or avoid the doing of the infringing act”.[4]

There is no discussion in the judgment of whether Tamawood’s website included a notice purporting to limit the use of the site, for example, to “personal use” or “private and non-commercial use” (whatever either of those may mean) or in any other way. ?

See s 36(1A)(c). No claim for authorisation or procurement appears to have been pursued against Shane O’Mara or Speer. ?

The only issue before the High Court was whether or not iiNet (the ISP) was liable for authorising the infringements of copyright committed by 11 of its subscribers, who made available online various infringing copies of films through BitTorrent (even though it can be used for lawful purposes, I think I’ll let you go find your own copy if you’re so inclined). Given that iiNet had no role in BitTorrent, its subscribers’ choices to use BitTorrent or what they downloaded with BitTorrent, the film companies sought to put iiNet’s liability on the basis that (at [5]):

the provision by iiNet to its customers (and to other users of those customers’ accounts) of access to the internet, which can be used generally and, in particular, to access the BitTorrent system;

the infringement of the copyright in the appellants’ films by customers of iiNet who have made the films available online in whole or in part using the BitTorrent system;

the knowledge by iiNet of specific infringements, as drawn to its attention by notices from the Australian Federation Against Copyright Theft (“AFACT”), representing the appellants;

the technical and contractual power of iiNet to terminate the provision of its services to customers infringing copyright; and

the failure by iiNet to take reasonable steps to warn identified infringing customers to cease their infringements and, if appropriate, to terminate the provision of its services to them. [1]

As you no doubt know by now, the High Court ruled unanimously that iiNet did not auhorise the infringements of the film companies’ copyrights.

The first thing to note is we’ve got those 2 teams giving separate judgments again: (French CJ, Crennan and Kiefel JJ; Gummow and Hayne JJ). Not quite sure where that is going although 2 members of team 1 will still be there after June 2013.

Next, all 5 judges agreed whether someone is liable for authorising is largely a question of fact to be determined in all the circumstances.

Then, despite what we had all thought since Moorhouse, all 5 judges agree that “authorise” does not mean “sanction, approve, countenance”. “Countenance” in particular includes connotations which ‘are remote from the reality of authorisation which the statute contemplates’ (at [68]) and go well beyond the ’core notion of “authorise”’ (at [125]).

Instead, in deciding whether or not there has been an authorisation all 5 judges directed attention to the 3 criteria specified in 101(1A) and 36(1A):

(a) the extent (if any) of the person’s power to prevent the doing of the act concerned;

(b) the nature of any relationship existing between the person and the person who did the act concerned;

(c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

All 5 judges recognise that the 3 s 101(1A) criteria are not exhaustive; they are the starting point (at [68]) and essential (at [135]), however, in this case at least they are the only criteria considered.

In applying these 3 factors, the 2 judgments reach pretty much the same conclusions:

(78) The extent of iiNet’s power was limited to an indirect power to prevent a customer’s primary infringement of the appellants’ films by terminating the contractual relationship between them. The information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts. For these reasons, iiNet’s inactivity after receipt of the AFACT notices did not give rise to an inference of authorisation (by “countenancing” or otherwise) of any act of primary infringement by its customers.

(146) The present case is not one where the conduct of the respondent’s business was such that the primary infringements utilising BitTorrent were “bound” to happen in the sense apparent in Evans v E Hulton & Co Ltd[165], and discussed earlier in these reasons[166]. Further, iiNet only in an attenuated sense had power to “control” the primary infringements utilising BitTorrent. It was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required itself to undertake, at its peril of committing secondary infringement.

These conclusions, however, summarise the results of a very multi-faceted and many layered inquiry. Any “power” that iiNet had was too “indirect” or “attenuated” essentially because:

iiNet had no involvement in BitTorrent or a user’s choice to use BitTorrent or what the user used BitTorrent for;

unlike Grokster (pdf) and Kazaa, iiNet did not encourage its users to use BitTorrent or seek to profit specifically from their infringing use;

iiNet did have a contractual power to suspend or terminate an account for breach (including for copyright infringement) but:

its obligation was to provide internet access which could be used for non-infringing or infringing purposes, not just infringing purposes;

terminating an account would not stop the user just using a different account, possibly with a different ISP;

iiNet would be liable for breach of contract if it suspended or terminated a user in response to an allegation and it turned out the user was not in fact infringing copyright. [2]

A third consideration highlighted in both judgments was the inadequate notice of infringements given through the AFACT notices. Remember, in keeping with Gibbs J, [3] the film companies argued that iiNet had knowledge that its requirement that users not infringe copyright was being ignored.

It was accepted that iiNet knew that more than half of its user’s usage involved BitTorrent (although not all of that constituted infringements). (at [38], [92]; but iiNet was no different to any other ISP in that regard).

The film companies also sent iiNet on a weekly basis AFACT notices which purported to set out information about subscriber’s accounts that were being used to communicate infringing copies. By the trial, iiNet accepted that these AFACT notices did in fact identify infringements. There were, however, a number of problems.

Most importantly, when the notices were sent, there was no explanation of how they were prepared or how they worked (not that that would have made any difference to how iiNet would have treated them) [4]; it was only after discovery and provision of expert evidence that iiNet could understand them sufficiently to accept their veracity ([34] and [75], [138]).

This raises the question: what is iiNet’s situation now that it has had explained to it and accepted as reliable the AFACT notices? That seems rather less clear.

The ‘reasonableness’ of iiNet’s inaction was at least in part predicated on its lack of knowledge given the problems with the AFACT notices.

First, French CJ, Crennan and Kiefel JJ say at [69], however, that there cannot be liability for authorisation without power to prevent the primary infringement and, as already noted, any such power is lacking or too indirect. Gummow and Hayne JJ do not make so explicit a statement (and their Honours endorse imposition of liability where infringement is “bound” to happen). Nonetheless, their Honours do at several points emphasise the presence or absence of control, or direct power to control, the primary infringement as key facts. For example, [127] and in contrast to Moorhouse at [144] from which iiNet’s situation was “well removed”.

Secondly, the High Court seemed very reluctant to leave iiNet with the burden of having to check back to see whether a particular user was still infringing particularly in circumstances where it would have been dependent on the use of the film companies’ technology to do so. So French CJ, Crennan and Kiefel JJ said:

(74) Whatever responses iiNet received to warnings, iiNet would be obliged to update the investigative exercise underlying the AFACT notices either itself or by reference to subsequent AFACT notices (allowing an appropriate interval for compliance with a request to cease infringement) before proceeding further.

(75) Updating the investigative exercise in the AFACT notices would require iiNet to understand and apply DtecNet’s methodology – which, among other things, involved a permission to DtecNet from AFACT to use the BitTorrent system to download the appellants’ films. Before the filing of experts’ reports in the proceedings, the information in the AFACT notices did not approximate the evidence which would be expected to be filed in civil proceedings in which interlocutory relief was sought by a copyright owner in respect of an allegation of copyright infringement. Also, any wrongful termination of a customer’s account could expose iiNet to risk of liability. These considerations highlight the danger to an ISP, which is neither a copyright owner nor a licensee, which terminates (or threatens to terminate) a customer’s internet service in the absence of any industry protocol binding on all ISPs, or any, even interim, curial assessment of relevant matters.[5]

Thirdly, both judgments refer with approval to the Blank Tapes case and the majority’s recognition there that manufacturers of products such as blank tapes and video recorders, which have both lawful and unlawful uses, will not be liable for authorising copyright infringement even if they know it is likely that their products will be used to commit infringements (at [53] and [130]).

Both judgments conclude with calls for the legislature and/or co-operative industry codes to deal with the challenges these issues pose. It had seemed that a co-operative industry code required the near death experience in the Full Federal Court for motivation, but at least the 5 major ISPs kept plugging away.

Finally, what is the status of Moorhouse itself? Here the difference with Amstrad and CCH Canadian comes clearest. The House of Lords plainly thought Moorhouse was a copyright liability too far and, as the Roadshow High Court interpreted the judgment, limited authorisation to cases where the defendant granted, or purported to grant, the primary infringer the right to do the infringing act. The Supreme Court of Canada went even further and held that a law library was not liable for authorising infringements by photocopying in largely similar circumstances to Moorhouse (if one can overlook any difference between a reference library for lawyers and a university library). In contrast, the Roadshow High Court explained that the University was liable in Moorhouse because of the extent of its control over the photocopier, the books and the primary infringer’s activities: the circumstances in Roadshow were “well removed” from those in which liability was imposed on the University (at [144], see also [69]). This approach may reflect the legislative codification of criteria from Gibbs J’s judgment, but it also reflects the way iiNet put its case (at [60] – [61]).

[66] – [70], [73]; [139] Gummow and Hayne JJ go so far as to point out that termination would deny the user access to the internet for non-infringing activities. Despite the criticisms directed at Higgins J’s opinion in Adelaide Corporation, all 5 judges appear to agree with his Honour’s view that a right to terminate a contract was wholly disproportionate (but, of course, there are all those other factors to, er, factor in). The Grokster / Kazaa point is made explicitly only by Gummow and Hayne JJ at [101] ?

See e.g. at [58] and at [14] in austlii’s online version of Moorhouse. ?

See the evidence recounted by Jagot J at [308] – [318] in the Full Court. ?

See also the summary of iiNet’s argument at [62] and Gummow and Hayne JJ at [138] – [139] and [143]. ?

The Ninth Circuit has affirmed the trial court’s summary dismissal of UMG copyright claims against Veoh on the basis of §512(c) – the ‘hosting’ safe harbour. UMG argued 3 reasons why §512(c) did not apply:

First, UMG argues that the alleged infringingactivities do not fall within the plain meaning of “infringe-ment of copyright by reason of the storage [of material] at thedirection of a user,” a threshold requirement under§ 512(c)(1). Second, UMG argues that genuine issues of factremain about whether Veoh had actual knowledge of infringe-ment, or was “aware of facts or circumstances from whichinfringing activity [wa]s apparent” under § 512(c)(1)(A).Finally, UMG argues that it presented sufficient evidence thatVeoh “receive[d] a financial benefit directly attributable to. . . infringing activity” that it had the right and ability to control under § 512(c)(1)(B). We disagree on each count, andaccordingly we affirm the district court.

Each of these requirements has a counterpart in our US Free Trade Agreement ‘inspired’ – see s 116AH items 1 and 4 and therefore should repay consideration.

On the knowledge / awareness point:

At [11], Judge Fisher noted that UMG had not notified Veoh of any infringing material under the DMCA before commencing proceedings. After noting at [12] that Congress placed the burden of policing infringements on copyright holders, Judge Fisher continued at [13]:

[13] UMG asks us to change course with regard to§ 512(c)(1)(A) by adopting a broad conception of the knowl-edge requirement. We see no principled basis for doing so.We therefore hold that merely hosting a category of copy-rightable content, such as music videos, with the generalknowledge that one’s services could be used to share infring-ing material, is insufficient to meet the actual knowledgerequirement under § 512(c)(1)(A)(i).

Then at [14], Judge Fisher rejected UMG’s arguments that Veoh should be held to have sufficient awareness of infringing activity:

…. For the same reasons, we hold that Veoh’s general knowledge that it hosted copyright-able material and that its services could be used for infringe-ment is insufficient to constitute a red flag.

In Section 2, Judge Fisher dismissed UMG’s other evidence of awareness. One point of interest was that an email from Michael Eisner CEO of Disney would have been sufficient if from a third party, but was rejected since it was from a copyright holder and did not follow the DMCA process.

As Techdirt points out, however, the costs of the litigation drove Veoh out of business.

Next up, presumably, the Ninth Circuit’s decision in the appeal from Viacom v Youtube.

Although, as noted above, the decision has potential ramifications for the corresponding Australian provision, I am not convinced it has much to say on Roadshow v iiNet (which concerned Category A activity, not Category C anyway) where the AFACT Notices seemed to provide specific notice (once properly explained).

While we wait with bated breath for the High Court’s deliberations on Roadshow v iiNet (transcript of hearing here, here and here), it is worth noting that the CJEU (formerly the ECJ) has struck down an injunction against an ISP which required the ISP to monitor all its users’ traffic and filter (block) copyright infringing material.

SABAM, the Belgian authors’ collecting society (counterpart to APRA) obtained an interlocutory injunction against Scarlet, an ISP. SABAM contended that some of Scarlet’s customers were using its services to engage in peer-to-peer file sharing of copyright materials without authorisation. It obtained from the Belgian courts an order that Scarlet implement a system of filtering to ensure that its users were blocked or otherwise made it impossible for them to send or receive in any way, files containing a musical work using peer-to-peer software without the permission of the copyright owners.

It was common ground between the parties that this would require Scarlet to introduce a system for filtering:

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which infringes copyrigh

It was also common ground between the parties that such a system would require :

– first, that the ISP (Scarlet) identify, within all of the electronic communications of all its customers, the files relating to peer-to-peer traffic;

– secondly, that it identify, within that traffic, the files containing works in respect of which holders of intellectual-property rights claim to hold rights;

– thirdly, that it determine which of those files are being shared unlawfully; and

– fourthly, that it block file sharing that it considers to be unlawful.

That is, the ISP would have to monitor all the traffic across its network.

While the CJEU recognised that IP, in this case copyright, was a fundamental right. It also recognised that its protection needed to be balanced against the protection of other fundamental interests. It was necessary to strike a fair balance between the rights of copyright owners, ISPs and their customers. This injunction did not do that and so was incompatible with Community law (we would say “invalid”):

47 In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48 Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

49 In those circumstances, it must be held that the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as ISPs.

50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

Thus, the filtering injunction did not strike a fair balance between the protection of IP and the rights of ISPs and their customers.

IPKat has the text of the CJEU’s Summary and as they point out, the CJEU’s ruling has some interesting implications for the filtering injunction ordered by Arnold J in Newzbin 2.

Of course, in Australia, we do not labour under a Charter of Rights. Section 116AH(2) of the Copyright Act 1968 does, however, place some limits on a “carriage service provider’s” obligations to monitor:

(2) Nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1),

which is a rather more anodyne protection. Also, under the Telecommunications Act, carriers and carriage service providers have prohibitions on disclosing information related to communications (which is not the same thing as a prohibition on monitoring), but there are important exceptions including disclosures authorised by or under law. Cf e.g. ss 276 and 280.

The film studios have announced they have sought special leave to appeal from the Full Federal Court’s 2-1 decision dismissing their claim that iiNet infringed their copyright by ‘authorising’ its subscribers’ infringing activities.